Thomas, J., concurring
good, may be hastily and unadvisedly passed,” section III of the New York Constitution required the two Houses of the New York Legislature to present “all bills which have passed the senate and assembly” to the “council for their revisal and consideration.” Ibid. The Council’s power “to revise legislation” meant that, if it “objected to any measure of a bill, it would return a detailed list of its objections to the legislature,” which “could change the bill to conform to those objections, override” them by a two-thirds vote of both Houses, “or simply let the bill die.” J. Barry, Comment: The Council of Revision and the Limits of Judicial Power, 56 U. Chi. L. Rev. 235, 245 (1989) (Barry) (emphasis deleted).[1] The grounds for the Council’s vetoes “ranged from an act being ‘inconsistent with the spirit of the Constitution’ to an act being passed without ‘the persons affected thereby having an opportunity of being heard’ ” to an act being “ ‘inconsistent with the public good.’ ” Id., at 245–246 (alteration and footnote omitted).
At first, the Council was a well-respected institution, and several prominent delegates to the Philadelphia Convention sought to replicate it in the Federal Constitution. Resolution 8 of the Virginia Plan proposed a federal council of revision composed of “the Executive and a convenient number of the National Judiciary” that would have “authority to examine [and veto] every act of the National Legislature before it shall operate.” 1 Records of the Federal Convention of 1787, §8, p. 21 (M. Farrand ed. 1911) (Farrand). The Council’s veto would “be final … unless the Act of the National Legislature be again passed.” Ibid.; see also J. Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 30–33 (2010).
The proponents of a council were clear that they sought
- ↑ The term “revise” was understood to mean “[t]o review.” 2 S. Johnson, A Dictionary of the English Language (4th ed. 1773); N. Bailey, A Universal Etymological English Dictionary (22 ed. 1770) (“to review, to look over again”).
